Lorenzo Kofa v. Immigration and Naturalization Service

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LORENZO KOFA,

Petitioner,

v.

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

WASHINGTON LAWYERS' COMMITTEE

No. 92-1246

FOR CIVIL RIGHTS UNDER LAW;

AMERICAN IMMIGRATION LAWYERS

ASSOCIATION; LEGAL ACTION CENTER

OF THE AMERICAN IMMIGRATION LAW

FOUNDATION; NATIONAL IMMIGRATION

PROJECT OF THE NATIONAL LAWYERS

GUILD,

Amici Curiae.

JORGE SAMUEL MORENO,

Petitioner,

v.

No. 92-2522

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petitions for Review of Orders

of the Immigration & Naturalization Service.

(A29-690-266, A28-023-118)

Argued: March 8, 1994

Decided: July 27, 1995

Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL,

MURNAGHAN, WILKINSON, WILKINS, NIEMEYER,

HAMILTON, LUTTIG, WILLIAMS, and MICHAEL,

Circuit Judges.*

_________________________________________________________________

Petitions for review denied by published opinion. Judge Widener

wrote the majority opinion, in which Judges Russell, Wilkinson, Wil-

kins, Niemeyer, Luttig, and Williams joined. Judge Hamilton wrote

a dissenting opinion, in which Chief Judge Ervin and Judges Hall,

Murnaghan, and Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Margaret Gleason, CATHOLIC LEGAL IMMIGRA-

TION NETWORK, Washington, D.C., for Petitioner. Joel Alan

Fischman, DICKSTEIN, SHAPIRO & MORIN, Washington, D.C.,

for Amici Curiae. Frank S. Holleman, III, Civil Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Stuart M. Gerson, Assistant Attorney Gen-

eral, David J. Kline, Assistant Director, Office of Immigration Litiga-

tion, Civil Division, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent. Justin D. Simon, Amy

M. Nice, Alison N. Davis, DICKSTEIN, SHAPIRO & MORIN,

Washington, D.C.; Lory D. Rosenberg, AMERICAN IMMIGRA-

TION LAW FOUNDATION, Washington, D.C., for Amici Curiae.

_________________________________________________________________

*Judge Phillips participated in the proceedings in this case until after

the oral argument thereof. However, he took senior status between the

date the case was argued and the date it was decided, so he did not partic-

ipate in its decision. See Local Rule 35(c).

OPINION

WIDENER, Circuit Judge:

The sole issue in these consolidated cases is whether 8 U.S.C.

§ 1253(h)(2)(B), ¹   which authorizes withholding of deportation,

requires a separate determination of dangerousness to the community

in the case of an aggravated felon. We answer that question in the

negative and deny each of the petitions for review.

I

Case Number 92-1246 concerns Lorenzo Nma Kofa, who is a

twenty-three year old citizen of Liberia who has lived in the United

States since 1980. He faces deportation to Liberia because of his two

1990 Maryland state law convictions for possession of cocaine with

intent to distribute the same, and for distribution of cocaine. Both of

these convictions are aggravated felonies. See 8 U.S.C. § 1101(a)(43).

On November 9, 1990, the Immigration and Naturalization Service

(INS) issued an order to show cause why Kofa should not be deported

because of those drug convictions. At a hearing held on April 26,

1991, the Immigration Judge determined that despite the fact that he

had been convicted of a particularly serious crime, Kofa could apply

for withholding of deportation if he could prove that he was not a

danger to the community of the United States. The Immigration Judge

held an evidentiary hearing on the issue of danger to the community

on May 10, 1991 and found that Kofa was remorseful and there was

insufficient evidence to show that he continued to be a danger to the

community of the United States. A hearing was then scheduled to

determine the merits of his application for withholding of deportation.

Following the Immigration Judge's decision and an unsuccessful

motion for reconsideration, the INS filed an interlocutory appeal to

the Board of Immigration Appeals, taking the position that because

he had been convicted of a particularly serious crime, Kofa was statu-

torily ineligible under 8 U.S.C. § 1253(h)(2)(B) to apply for withhold-

ing of deportation. The Board of Immigration Appeals agreed and

remanded the case with instructions to the Immigration Judge, Matter

of K- , Interim Dec. No. 3163 (B.I.A. Nov. 5, 1991), who then ordered

Kofa's deportation to Liberia. Kofa petitions for review of the

Board's decision.

Case Number 92-2522 concerns Jorge Samuel Moreno-Duran

(Moreno), who is a native of El Salvador and a citizen of Panama who

describes himself as a "citizen allegedly of El Salvador and Panama."

Moreno entered the United States as a nonimmigrant student on Janu-

ary 6, 1981. Because of his marriage to a United States citizen,

Moreno was classified as a lawful permanent resident of the United

States beginning on September 23, 1987.

On February 11, 1988 Moreno was convicted in the Circuit Court

of Fairfax County, Virginia, of possession of cocaine with intent to

distribute. On June 12, 1992, the INS issued an order to show cause

why Moreno should not be deported because of his drug conviction.

A hearing on the order to show cause was held on August 4, 1992.

The Immigration Judge determined that because of his drug convic-

tion Moreno was deportable under 8 U.S.C. § 1251(a)(2)(B)(i). The

Immigration Judge further found that he was statutorily ineligible to

apply for withholding of deportation or asylum. The Immigration

Judge then ordered him deported to Costa Rica or, if Costa Rica

would not accept him, to Panama.

Moreno appealed the Immigration Judge's decision to the Board.

In a per curiam order, the Board dismissed the appeal without oral

argument, finding that Moreno is ineligible for asylum or withholding

of deportation because of his drug conviction. ²   Moreno filed his peti-

tion for review.

II

The language of Section 1253(h)(2)(B) was enacted on March 17,

1980. Refugee Act of 1980, Pub. L. No. 96-212, § 203(e), 94 Stat.

104 (1980). Subsection (h) of 8 U.S.C. § 1253 provides:

(h) Withholding of deportation or return

(1) The Attorney General shall not deport or

return any alien . . . to a country if the Attorney

General determines that such alien's life or free-

dom would be threatened in such country on

account of race, religion, nationality, membership

in a particular social group, or political opinion.

(2) Paragraph (1) shall not apply to any alien

if the Attorney General determines that--

. . . .

(B) the alien, having been convicted by a

final judgment of a particularly serious crime,

constitutes a danger to the community of the

United States; . . . .

The Board of Immigration Appeals has interpreted subsection (B) to

mean that if it determines that the alien has been convicted of a partic-

ularly serious crime, the alien is, necessarily, a danger to the commu-

nity of the United States and is therefore ineligible for withholding of

deportation. Matter of U-M- , Interim Dec. No. 3152, slip op. at 5

(B.I.A. June 5, 1991); Matter of Carballe , 19 I. & N. Dec. 857, 860

(1986), modified in part on other grounds , Matter of Gonzalez , 19

I. & N. Dec. 682, 685 & n.3 (1988).

On November 29, 1990, subsection (h)(2) was amended to add the

following language:

For purposes of subparagraph (B), an alien who has been

convicted of an aggravated felony shall be considered to

have committed a particularly serious crime.

Immigration Act of 1990, Pub. L. No. 101-649, § 515(a)(2), 104 Stat.

5053 (1990). We are asked in this case to determine whether an alien

who has been convicted of an aggravated felony (and therefore, by

statute, convicted of a particularly serious crime) is entitled to a sepa-

rate determination of whether the alien is a danger to the community

or whether, as the Board of Immigration Appeals maintains, such an

alien is statutorily ineligible for withholding of deportation.

A

When an agency has construed a statute that we later are asked to

construe, the Supreme Court has made plain our task:

When a court reviews an agency's construction of the

statute which it administers, it is confronted with two ques-

tions. First, always, is the question whether Congress has

directly spoken to the precise question at issue. If the intent

of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the unam-

biguously expressed intent of Congress. If, however, the

court determines Congress has not directly addressed the

precise question at issue, the court does not simply impose

its own construction on the statute, as would be necessary

in the absence of an administrative interpretation. Rather, if

the statute is silent or ambiguous with respect to the specific

issue, the question for the court is whether the agency's

answer is based on a permissible construction of the statute.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842-43 (1984) (footnotes omitted).

Petitioners urge us to look at the legislative history surrounding,

and some written even after, the passage of the 1990 Amendments to

Section 1253(h)(2) to determine what Congress meant when it

enacted the amendment to the language of Section 1253(h)(2)(B).

However, the first place where we must look to see if Congress has

spoken to the issue with which we are concerned and whether Con-

gressional intent in that regard is clear is on the face of the statute.

Statutory construction must begin with the language of the statute.

Norfolk & W. Rwy. v. American Train Dispatchers Ass'n , 499 U.S. 117, 128 (1991); Lewis v. United States , 445 U.S. 55, 60 (1980);

United States v. Sheek , 990 F.2d 150, 152 (4th Cir. 1993). To do oth-

erwise would assume that Congress does not express its intent in the

words of statutes, but only by way of legislative history, an idea that

hopefully all will find unpalatable. See Continental Can Co. v. Chi-

cago Truck Drivers, Helpers & Warehouse Workers Union (Indep.)

Pension Fund , 916 F.2d 1154, 1157-58 (7th Cir. 1990) ("The text of

the statute, and not the private intent of the legislators, is the law. . . .

So the text is law and legislative intent a clue to the meaning of the

text, rather than the text being a clue to legislative intent.") (citing In

re Sinclair , 870 F.2d 1340 (7th Cir. 1989)).

If the statute is silent or ambiguous on the question, we next turn

to the agency's interpretation. We uphold it if it is permissible even

if it is not the interpretation we would have given to the same statute.

Chevron , 467 U.S. at 843 n.11. The agency's construction of the stat-

ute is entitled to deference, and we will not substitute our own con-

struction if the agency's construction is reasonable. Newport News

Shipbuilding & Dry Dock Co. v. Howard , 904 F.2d 206, 209 (4th Cir.

1990).

B

The INS argues that the plain meaning of the statute is that once

an alien has been convicted of a particularly serious crime, he there-

fore is a danger to the community and is ineligible for withholding

under 8 U.S.C. § 1253(h)(2)(B). The petitioners argue that the plain

meaning of the statute is that once the alien has been convicted of a

particularly serious crime, the Attorney General then must determine

whether the alien is a danger to the community and, being such, is

ineligible for withholding of deportation. In the alternative, they argue

that we must look at the legislative history to ascertain Congressional

intent, which they argue supports their reading of the statute.

We think the meaning of the statute is plain. We agree with the

view of the INS that the alien constitutes a danger to the community

because he has been convicted of a particularly serious crime, so once

the particularly serious crime determination is made, the alien is ineli-

gible for withholding without a separate finding on dangerousness. In

light of the language of the statute, we cannot accept the petitioners'

reading of it. We construe the statute in accordance with two princi-

ples of statutory construction: plain English and common sense. See

First United Methodist Church v. United States Gypsum Co. , 882

F.2d 862, 869 (4th Cir. 1989) (stating that common sense is the "most

fundamental guide to statutory construction"), cert. denied , 493 U.S. 1070 (1990); Sutton v. United States , 819 F.2d 1289, 1292 (5th Cir.

1987) (stating that the courts have a duty to construe the language in

a statute consistent with its plain meaning); The King v. Inhabitants

of St. Nicholas , 4 Neville & Manning 422, 426-27 (Eng. K.B. 1835)

(Denman, C.J.) ("[W]here I find the words of a statute perfectly clear

I shall adhere to those words, and shall not allow myself to be

diverted from them by any supposed consequences of one kind or the

other . . . ."), cited in I Kent's Commentaries , 467-68, n.d (1836). Our

interpretation comports with these principles. In addition, this inter-

pretation is one that we share with five other circuits. Al-Salehi v.

INS , 47 F.3d 390 (10th Cir. 1995); Garcia v. INS , 7 F.3d 1320, 1373

(7th Cir. 1993); Martins v. INS , 972 F.2d 657, 660-61 (5th Cir. 1992)

(per curiam); Arauz v. Rivkind , 845 F.2d 271, 275 (11th Cir. 1988);

Ramirez-Ramos v. INS , 814 F.2d 1394, 1396-97 (9th Cir. 1987);

Crespo-Gomez v. Richard , 780 F.2d 932, 934-35 (11th Cir. 1986) (per

curiam); Zardui-Quintana v. Richard , 768 F.2d 1213, 1221-22 (11th

Cir. 1985) (Vance, J., concurring); see also Feroz v. INS , 22 F.3d 225

(9th Cir. 1994); Urbina-Mauricio v. INS , 989 F.2d 1085, 1087-88 (9th

Cir. 1993) (applying amended definition of aggravated felony).

C

Even if we were to reject the views of our five sister circuits and

decide that the statute's meaning is ambiguous, we still may not fol-

low the legislative history urged upon us. Instead, we turn to the con-

struction the Board of Immigration Appeals has given the language

of § 1253(h)(2)(B). Chevron , 467 U.S. at 843. The language of sub-

section (B) has been the same since 1980, and the language of the

1990 Amendments did not change subsection (B) in any way. The

Board of Immigration Appeals has interpreted it to mean that the

proper inquiry, and the only inquiry required, is whether someone has

been convicted of a particularly serious crime. How that interpretation

is unreasonable has not been brought to our attention, as we think it

is entirely consistent with the statute. Because the Board's interpreta-

tion is permissible and reasonable, we uphold it. Mosquera-Perez v.

INS , 3 F.3d 553, 558-59 (1st Cir. 1993); Ramirez-Ramos , 814 F.2d at

1397.

III

Petitioners also raise several other points which they say reveal that

our interpretation of the statute is in error.

A. Legislative History

Counsel ask us to look to legislative history, including postenact-

ment legislative history, in an attempt to find that the Board's inter-

pretation (and ours) is inconsistent with Congressional intent. ³   The

use of legislative history in this fashion, and especially postenactment

legislative history, is a process that has been soundly criticized. See,

e.g., Mosquera-Perez , 3 F.3d at 556-58 (criticizing much of the same

legislative history relied on by counsel); Martins , 972 F.2d at 661

(same); Continental Can , 916 F.2d at 1157-58 (stating that postenact-

ment statements "do not count" because the term "´subsequent legisla-

tive history' [is] an oxymoron" (citations omitted)); 2B Norman J.

Singer, Sutherland Statutory Construction § 49.06, at 59 (5th ed.

1992) ("Little weight is given to postenactment statements by mem-

bers of Congress."). Further, the legislative history upon which peti-

tioners rely disregards "the most persuasive evidence of

Congressional intent," Davis v. Lukhard , 788 F.2d 973, 981 (4th Cir.),

cert. denied sub nom. Staton v. Lukhard , 479 U.S. 868 (1986), a

House Conference Report ⁴   that supports the cause-and-effect reading

of the House in H.R. Rep. No. 608, 96th Cong., 1st Sess. 18 (1979)

(stating that aliens "who have been convicted of a particularly serious

crime which makes them a danger to the community of the United

States" are excepted from the withholding provision). Their depen-

dence on other items of legislative history is unavailing and needs no

further comment. See Martins , 972 F.2d at 661 (noting that Senator

Kennedy's letter is in direct conflict with the House Report).

B. International Law

In addition, petitioners rely on the United Nations Protocol Relat-

ing to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, to which

the United States acceded in 1968. Accession to the Protocol binds

the United States to the United Nation Convention Relating to the

Status of Refugees (July 28, 1951), of which the United States is not

a signatory. It is true that we must construe the statute consistent with

our obligations under international law. See Murray v. The Charming

Schooner Betsy , 6 U.S. (2 Cranch) 64, 118 (1804). However, counsel

would have us by-pass the language of the Convention itself and

instead look at the history of the proceedings that resulted in the Con-

vention and the Handbook issued by the United Nations High Com-

missioner for Refugees (UNHCR). This invitation we decline.

The text of the Convention reads:

ARTICLE 33

Prohibition of Expulsion or Return

( "Refoulement" )

1. No Contracting State shall expel or return

("refouler") a refugee in any manner whatsoever to the fron-

tiers of territories where his life or freedom would be threat-

ened on account of his race, religion, nationality,

membership of a particular social group or political opinion.

2. The benefit of this provision may not, however, be

claimed by a refugee whom there are reasonable grounds for

regarding as a danger to the security of that country in

which he is, or who, having been convicted by a final judg-

ment of a particularly serious crime, constitutes a danger to

the community of that country.

U.N. Convention Relating to the Status of Refugees, art. 33 (July 28,

1951), 19 U.S.T. 6276 (emphasis added).

The language of the Convention relating to refugees who have been

convicted of particularly serious crimes is identical to that of

§ 1253(h)(2)(B). In addition, in its context within the treaty, it

becomes even clearer that one who has been convicted of a par-

ticularly serious crime is a danger to the community. Others may be

such a danger, too, and we therefore may return them if we have "rea-

sonable grounds" for regarding that alien as a danger to the security

of the country in which he is, but as to those convicted of particularly

serious crimes, the Convention itself tells us that they are a danger

such that the return provision may not be used to benefit them. ⁵  

C. The 1990 Amendments

Finally, petitioners argue that our construction of section

1253(h)(2)(B) is inconsistent with the 1990 amendment to section

1253(h)(2). The argument goes that the 1990 Amendments somehow

changed the manner in which the subsection (B) inquiry must be per-

formed. As we noted in Part II, the 1990 amendments added to the

end of the section (2) the language:

For purposes of subparagraph (B), an alien who has been

convicted of an aggravated felony shall be considered to

have committed a particularly serious crime.

The meaning of the amendment is plain. Speaking through the

amendment, Congress tells us that aliens who are convicted of an

aggravated felony have committed a particularly serious crime. The

Board need not apply the Frentescu test ⁶   in the case of those who

have committed aggravated felonies because Congress has already

determined that such aliens have committed particularly serious

crimes. It does not foreclose others from being considered as having

committed a particularly serious crime, but it explicitly states that

those who have been convicted of aggravated felonies have commit-

ted a particularly serious crime.

Petitioners argue that Congress knew how to bar convicted aggra-

vated felons if it desired to do so, and indeed, Congress enacted just

such a bar with respect to asylum. However, that reasoning overlooks

the fact that Congress fixed only that which needed fixing: i.e., to

accomplish the result it intended, Congress needed only to provide

that aggravated felonies were particularly serious crimes. The flaws

in reasoning otherwise become apparent when the language in dispute

is put into historical context. See Garcia , 7 F.3d at 1323-24.

In 1980 Congress passed several amendments to the Immigration

and Naturalization Act, after which the relevant portions of the asy-

lum statute read as follows:

(a) The Attorney General shall establish a procedure for an

alien physically present in the United States . . . to apply for

asylum, and the alien may be granted asylum in the discre-

tion of the Attorney General if the Attorney General deter-

mines that such alien is a refugee . . . .

8 U.S.C. § 1158 (1988). When compared with the relevant portion of

the withholding statute, see Part II, supra , it is seen that under the

withholding section, the Attorney General could not consider the

application of an alien who was convicted of a particularly serious

crime, but under the asylum provision just above quoted the Attorney

General had discretion to determine who could apply for asylum.

The 1990 Amendments added the following to the asylum provi-

sion:

(d) An alien who has been convicted of an aggravated

felony, notwithstanding subsection (a), may not apply for or

be granted asylum.

Immigration Act of 1990, Pub. L. No. 101-649, § 515(a)(1), 104 Stat.

5053 (1990) (codified as amended at 8 U.S.C. § 1158). The 1990

Amendments also added to the withholding provision the language

stating that an aggravated felony is a particularly serious crime.

Consistent with its intent to bar those convicted of aggravated felo-

nies from applying for withholding or asylum, Congress enacted pre-

cisely the language needed to carry out the result.

IV

Because we find that there is no requirement of a separate determi-

nation of danger to the community of the United States for those who

have committed particularly serious crimes and that those who have

committed aggravated felonies have committed particularly serious

crimes under Section 1253(h)(2)(B), we deny the petitions for review

in each case. ⁷  

The petitions for review are each

DENIED .

HAMILTON, Circuit Judge, dissenting:

This appeal presents a straightforward question of statutory inter-

pretation: whether 8 U.S.C. § 1253(h)(2), which authorizes withhold-

ing of deportation of an alien, requires a determination, in the case of

an alien who has committed an aggravated felony, that the alien con-

stitutes a danger to the community. Following the decisions of our sis-

ter circuits, the majority answers this question in the negative. The

majority's interpretation of § 1253(h)(2), which is that urged by the

Immigration and Naturalization Service (INS) and adopted by the

Board of Immigration Appeals (BIA), ignores the plain language of

the statute; indeed, the interpretation embraced by the majority ren-

ders key language in the statute nugatory. Because the majority's

interpretation of § 1253(h)(2) ignores the plain language of the stat-

ute, thereby violating a cardinal rule of statutory interpretation, I

respectfully dissent.

I

A

An alien has two distinct statutory remedies to avoid deportation.

The first is the asylum remedy which is discretionary. The Attorney

General may grant asylum to aliens physically present in this country

if they qualify as "refugees." See 8 U.S.C. § 1158(a). The statute

defines a refugee as one who is unwilling or unable to return to his

or her homeland "because of persecution or a well-founded fear of

persecution" on account of race, religion, nationality, membership in

a particular social group, or political opinion. See 8 U.S.C.

§ 1101(a)(42)(A). In 1990, as part of the Immigration Act of 1990,

Congress added 8 U.S.C. § 1158(d) to provide that:

(d) An alien who has been convicted of an aggravated fel-

ony, notwithstanding subsection (a) of this section, may not

apply for or be granted asylum.

Immigration Act of 1990, Pub. L. No. 101-649, § 515(a)(1), 1990

U.S.C.C.A.N. (104 Stat.) 5053.

The "withholding of deportation" remedy is the second statutory

remedy by which an alien might avoid deportation. It provides that

the Attorney General "shall not deport or return" an alien if his or her

life or freedom "would be threatened" in his or her home country on

account of any one or a combination of the same five grounds enu-

merated in the asylum provision. See 8 U.S.C. § 1253(h)(1). This

remedy is mandatory if the alien successfully shows that his or her

life or freedom would be threatened upon return to his or her home

country, and provided that an exception does not apply.

8 U.S.C. § 1253 provides, in relevant part:

(h) Withholding of deportation or return

(1) The Attorney General shall not deport or

return any alien (other than an alien described in

section 1251(a)(4)(D) of this title) to a country if

the Attorney General determines that such alien's

life or freedom would be threatened in such coun-

try on account of race, religion, nationality, mem-

bership in a particular social group, or political

opinion.

(2) Paragraph (1) shall not apply to any alien if

the Attorney General determines that--

* * *

(B) the alien, having been convicted by a final

judgment of a particularly serious crime, consti-

tutes a danger to the community of the United

States.

Also in 1990, the following was added to this section:

For purposes of subparagraph (B), an alien who has been

convicted of an aggravated felony shall be considered to

have committed a particularly serious crime.

Immigration Act of 1990, Pub. L. No. 101-649, § 515(a)(2), 1990

U.S.C.C.A.N. (104 Stat.) 5053.

B

When reviewing an agency's interpretation of a statute, we must

look first to the intent of Congress as expressed by the statutory lan-

guage. See Chevron U.S.A., Inc. v. Natural Resources Defense Coun-

cil, Inc. , 467 U.S. 837, 842-43 (1984). If that intent is clear, then we

and the agency are bound to give it effect. Id. If Congress explicitly

leaves a gap in the legislation then the agency has authority to fill that

gap and the agency is entitled to deference on the question unless the

agency's interpretation is "arbitrary, capricious, or manifestly con-

trary to the statute." Id. at 844. If the statute is merely silent or ambig-

uous on a particular matter and no intent on the part of Congress can

be discerned, the court is bound to give deference to an agency inter-

pretation unless the interpretation is unreasonable. Id.

II

The First, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuit Courts

of Appeals have considered the meaning of the language of 8 U.S.C.

§ 1253(h)(2), see Al-Salehi v. INS , 47 F.3d 390 (10th Cir. 1995);

Garcia v. INS , 7 F.3d 1320 (7th Cir. 1993); Mosquera-Perez v. INS ,

3 F.3d 553 (1st Cir. 1993); Urbina-Mauricio v. INS , 989 F.2d 1085

(9th Cir. 1993); Martins v. INS , 972 F.2d 657 (5th Cir. 1992); Arauz

v. Rivkind , 845 F.2d 271 (11th Cir. 1988); Ramirez-Ramos v. INS , 814

F.2d 1394 (9th Cir. 1987); Zardui-Quintana v. Richard , 768 F.2d

1213 (11th Cir. 1985) (Vance, J. concurring), and concluded that 8

U.S.C. § 1253(h)(2) states a cause and effect; in other words, because

an alien committed a particularly serious crime, he or she is per se a

danger to the community. The circuit courts have reached this conclu-

sion through two separate avenues. Some courts have concluded that

the plain language of § 1253(h)(2) states a cause and effect relation-

ship between conviction and community danger, see, e.g. , Arauz , 845

F.2d at 275 (relying on Judge Vance's concurring opinion in Zardui-

Quintana in holding that plain language of the statute creates a cause

and effect relationship), while others have concluded that the lan-

guage of the statute is ambiguous, and, consequently, adopted the

BIA's cause and effect interpretation as reasonable, see, e.g. , Al-

Salehi , 47 F.3d at 393 (holding that the BIA's interpretation is entitled

to deference and explaining that "[t]he courts generally have recog-

nized that the linguistic structure of § 1253(h)(2)(B) precludes an

unequivocal, conclusive interpretation based on language alone");

Mosquera-Perez v. INS , 3 F.3d at 555-59 (holding language of the

statute is ambiguous, but BIA's interpretation reasonable). ¹   Today,

the majority reaches alternative holdings: (1) the majority concludes

that the plain language of the statute states a cause and effect relation-

ship between conviction and community danger, and, (2) the majority

concludes, that even if the statute is ambiguous, the BIA's inter-

pretation is reasonable, and thus entitled to deference.

In my view, the intent of Congress is clear from the plain language

of the statute: before an alien can be denied the withholding of depor-

tation remedy, first, the alien must have committed"a particularly

serious crime," and second, the Attorney General must make a deter-

mination that the alien "constitutes a danger to the community."

Because the statute is not silent or ambiguous with respect to the issue

at hand, I would end the court's inquiry at this point without regard

to the interpretation of the BIA. See Chevron U.S.A. , 467 U.S. at 842-43. Consultation of legislative history would be equally inappro-

priate, because, although courts "appropriately may refer to a statute's

legislative history to resolve statutory ambiguity," Toibb v. Radloff ,

501 U.S. 157, 162 (1991), the clarity of the statutory language at issue

in this case, completely obviates the need for such inquiry. See id. ;

Caminetti v. United States , 242 U.S. 470, 485 (1917) (stating that if

statutory language "is plain and admits of no more than one meaning,

the duty of interpretation does not arise, and the rules which are to aid

doubtful meanings need no discussion").

Cavalierly, the decisions of our sister circuits, as well as the major-

ity in this case, disregard the plain language of§ 1253(h)(2), which

of course is paramount and dispositive. These decisions effectively

read out the "danger to the community" language within this statute.

Logic dictates that if Congress intended the alien's commission of a

"particularly serious crime" to be dispositive of the inquiry and that

there be no separate determination of dangerousness by the Attorney

General, Congress would not have inserted the "danger to the commu-

nity" clause in § 1253(h)(2)(B). Reading out the "danger to the com-

munity" clause, as the majority and our sister circuits have, violates

the well settled rule that when reading or interpreting a statute, a court

must strive to give effect to every word contained within the statute,

see, e.g. , United States v. Menasche , 348 U.S. 528, 538-39 (1955).

The support for reading out the "danger to the community" lan-

guage comes from the notion that, had Congress intended a separate

determination, Congress could have made the clauses conjunctive by

inserting the word "and" but did not do so. See, e.g. , Zardui-

Quintana , 768 F.2d at 1222 (Vance, J. concurring). Reduced to its

essence, the argument presents a double-edged sword since it is at

least equally true that, had Congress intended to create a per se bar

to withholding from deportation for aggravated felons, it could have

clearly drafted the statute to accomplish this result. For example, Con-

gress could have inserted "if" and "then" in the statute. Alternatively,

Congress could have adopted language similar to that in § 1158 as

modified by the 1990 Immigration Act. The language added to § 1158

clearly accomplishes, with respect to asylum, what the INS and the

BIA seek to have the language in § 1253(h)(2)(B) accomplish by stat-

ing: "An alien who has been convicted of an aggravated felony . . .

may not apply for asylum." 8 U.S.C. § 1158(d). Although this com-

parison may not, by itself, suggest a particular Congressional intent,

it definitely undercuts the suggestion that the failure to draft

§ 1253(h)(2)(B) in the conjunctive requires a cause and effect rela-

tionship. Moreover, reliance on Congress' failure to employ the word

"and" focuses on what Congress should have said rather than what

Congress has said, which, of course, is paramount.

Perhaps even more critical, a cause and effect reading of

§ 1253(h)(2)(B) reads out the language "the Attorney general deter-

mines," contained in § 1253(h)(2). Thus, in another respect, the cause

and effect reading of the statute violates the canon of statutory con-

struction that when reading or interpreting a statute, we must strive

to give effect to every word contained within the statute, see

Menasche , 348 U.S. at 538-39. In contrast to the cause and effect

reading propounded by the majority and our sister circuits, a reading

requiring the Attorney General to consider the danger to the commu-

nity that an alien convicted of a particularly serious crime presents

gives effect to both clauses and the language "the Attorney General

determines." According to the grammatical construction of

§ 1253(h)(2), what the Attorney General must determine is whether

the alien presents a danger to the community, not whether the alien

has been convicted of a particularly serious crime. Deciding if an

alien has been convicted of a particularly serious crime is not a "de-

termination" at all. By its terms, the statute defines "particularly seri-

ous crime" as an "aggravated felony," which is itself defined in

§ 1101(a)(43). Because the statute defines"particularly serious

crime," it is illogical to conclude that Congress thought it necessary

to direct the Attorney General to "determine" whether a crime falls

within the statutory list at § 1101(a)(43). Indeed, Congress did not

direct the Attorney General to determine if an alien committed an

aggravated felony with respect to the asylum provisions. Compare 8

U.S.C. § 1253(h)(2) with 8 U.S.C.§ 1158(d).

Conspicuously, the majority opinion in this case never attempts to

harmonize the language "the Attorney General determines" with the

conviction and the danger to community clauses; rather, the majori-

ty's interpretation of the statute hides in a conclusory ruse: "plain

English and common sense" compels its conclusion. Ante at 8. In

short, the intent of Congress is clear through the plain language of the

statute; that statute requires the Attorney General to make a determi-

nation, and that determination is not whether an alien has been con-

victed of a particularly serious crime, but rather whether that alien

constitutes a danger to the community. ²  

III

We need not proceed further. The statute at issue here is plain on

its face: in order to deny withholding of deportation, the alien must

have committed a particularly serious crime and the Attorney General

must make a determination that the alien constitutes a danger to the

community. Because the majority concludes otherwise, I respectfully

dissent.

Chief Judge Ervin, Judge Hall, Judge Murnaghan and Judge

Michael join this dissent.

FOOTNOTES

Part II, infra .

There are also procedural claims which, even if well taken, would not

go to the merits of the case.

ment that the Immigration Judge improperly denied him a continuance.

The Board held that because he was statutorily ineligible for a waiver of

inadmissibility under 8 U.S.C. § 1182(c), the Immigration Judge prop-

erly denied him a continuance.

May 10, 1990 and May 17, 1990 letters from Senator Simpson to the

United Nations High Commissioner for Refugees (UNHCR); an article

by Karl W. Hampe, counsel to the Senate Committee on Foreign Affairs

(found in Arnold H. Leibowitz & Lynda S. Zengerle, The Immigration

Act of 1990 (Prentice-Hall)); an April 16, 1992 letter from Senator Ken-

nedy to the INS Commissioner and the Director of the Executive Office

for Immigration Review; and a May 1, 1990 letter from the UNHCR to

Senator Simpson. The Kennedy letter was written almost 15 months after

the passage of the 1990 Amendments.

provisions adopted by the Conference Committee and therefore the ones

enacted. H.R. Conf. Rep. No. 96-781, 96th Cong., 2d Sess. 20, reprinted

in 1980 U.S.C.C.A.N. 160, 161.

outside the Convention and Protocol, we note that the Handbook itself

states that it "does not deal with questions closely related to the determi-

nation of refugee status e.g. the granting of asylum to refugees or the

legal treatment of refugees after they have been recognized as such."

U.N. High Comm'r for Refugees, Handbook on Procedures and Criteria

for Determining Refugee Status ch.1, ¶ 24, at 7 (1979).

conviction, the type of sentence imposed, and, most importantly, whether

the type of circumstances of the crime indicate that the alien will be a

danger to the community. Crimes against persons are more likely to be

categorized as ´particularly serious crimes.'" Matter of Frentescu ,

Interim Decision No. 2906, June 23, 1982, p. 247.

§ 1253(h)(2)(B) which we adopt today violates their rights to due process

under the Fifth Amendment because they would be subject to deportation

without a hearing or other individualized determination of their deporta-

tion status. Although we recognize that aliens do have a liberty interest

in not being deported, there is no denial of due process when a hearing

is not held, as here, on application which "´on its face must be denied as

a matter of law.'" Martins v. INS , 972 F.2d 657, 662 (5th Cir. 1992) (per

curiam) (quoting Sanchez-Dominguez v. INS , 780 F.2d 1203, 1206 (5th

Cir. 1986)).

Moreno also raises an argument that the Immigration Judge improp-

erly denied his request, made at the August 4, 1992 hearing, for a contin-

uance until September 24, 1994. Moreno sought the continuance to

provide him with an opportunity to show rehabilitation and also to allow

him a chance to achieve seven years of permanent residency in order to

qualify for relief under 8 U.S.C. § 1182(c). The Immigration Judge

denied the request. A continuance should be granted only when an alien

is "eligible for [a] form of relief from deportation for which rehabilitation

would be relevant." Matter of Garcia-Reyes , 19 I. & N. Dec. 830, 832

(1988). Even if rehabilitation could be considered, and we do not suggest

that that is the case, Moreno was not then eligible for relief because he

did not have the seven years of lawful unrelinquished domicile which

that section also requires. Therefore, the Board of Immigration Appeals

was correct in affirming the Immigration Judge's refusal to grant a con-

tinuance.

Ninth, Tenth, and Eleventh Circuits) have concluded that the meaning of

the language in § 1253(h)(2) is plain and unambiguous. See ante at 7-8.

This inference is misleading. Indeed, the Tenth Circuit stated in Al-Salehi

that "courts generally have recognized that the linguistic structure of

§ 1253(h)(2)(B) precludes an unequivocal, conclusive interpretation

based on language alone." Al-Salehi , 47 F.3d at 393 (citing Martins ,

Ramirez-Ramos , and Mosquera-Perez ); see also Mosquera-Perez , 3 F.3d

at 555-59 (language of the statute is ambiguous, but BIA's interpretation

reasonable). Furthermore, the Fifth, Seventh, and Ninth Circuits have

simply deferred to the BIA's interpretation, see Garcia , 7 F.3d at

1323-26 (holding BIA's interpretation is entitled to deference based on

language and legislative history); Martins , 972 F.2d at 661 (affirming

BIA's interpretation based on legislative history); Ramirez-Ramos , 814

F.2d at 1397 (holding BIA's interpretation "reasonable" upon "[a] close

reading of the language"). The Eleventh Circuit has not deferred to the

BIA's interpretation; rather it has held that the plain language of

§ 1253(h)(2) states a cause and effect, see Arauz , 845 F.2d at 275;

Zardui-Quintana , 768 F.2d at 1222 (Vance, J. concurring).

stated that § 1253(h)(2) applies when the"alien was convicted of ´serious

crime' and ´constitutes a danger to the community of the United States.'"

INS v. Cardoza Fonseca , 480 U.S. 421, 444 n.28 (1987) (emphasis

added). Although not binding, this at least demonstrates the Court's

understanding of the provision after its consideration of § 1253(h)(2).